WHY HAVE UNIONS NOT TRIED THIS?
A budget shutdown puts a lot of pain on federal employees. No one gets a check during the shutdown and some even must continue to go to work, incurring commuting costs and denying them a chance to pick up some temp work to cover basic costs. Because the problem largely comes from the Anti-Deficiency Act, unions should be doing everything they can to gut the provisions of that law permitting this situation. For example,
the Constitution requires that Congress fund the Executive Branch (EB) and without funding the EB cannot operate. No approved budget means no executive branch work. Period. Congress has an easy way to avoid a total shutdown when they cannot agree on a new budget. It can merely approve a continuing resolution to fund the government at the same level they did the prior year. The fact that Congress refuses to adopt a continuing resolution should be taken as strong evidence that Congress is saying no executive branch work. If you disagree with that, ask yourself how Congress could ever shutdown all or part of the executive branch if its decision not to authorize funding permitted the President to keep feds working.
Somewhere along the line someone decided to modify the Anti-Deficiency Act to weasel a way around the Constitution. The modification permits the President to keep feds working if he alone decides it is necessary to protect “national security and public safety.” Stated differently, the President has been given the unbounded authority that is very clearly reserved for the Congress, i.e., deciding which EB operations to operate.
I say “unbounded authority” because Trump and a few of his predecessors have used that manufactured statutory wiggle room to avoid any pressure on them or Congress that would force them to bargain harder for a deal rather than grandstand for their political base. For example, commercial air traffic is not a national security issue and it is only a public safety issue because the President has decided to keep the system open. Shut it down, as happened in the days right after 9/11, and see how fast Congress and the President reach a deal. Similarly, border crossings are only a national security issue because the President wants them open to avoid a political hellstorm coming down on him. At most, Customs and Border Protection Officers should be employed during a shutdown to prevent anyone or anything from entering the country. Facilitating on-going vacation travel, imports, exports, etc. has nothing to do with national security or public safety.
I could go on listing executive branch functions that should be shut down because they meet neither the national security or safety and health exceptions, but I want to shift to another kind of insanity, i.e., what lawyers would call arbitrary, capricious, and illegal activity under this Anti-Deficiency Act. Many months ago, Trump declared that hundreds of thousands of federal employees were no longer permitted to have collective bargaining rights because continuing that would endanger “national security.” Yet, when the shutdown came along, he decided not to exempt them from furlough under the Anti-Deficiency Act’s national security exception. That amounts to declaring that the country is safer if those people are not working at all than it is if they are allowed to participate, even moderately, in setting agency personnel rules through union representatives. Nonsense.
Yes, it might seem nonsensicval for a union to go to court to force the President to prevent even more feds from working. But if successful, Congress and the Prez would be limited to either agreeing on a new budget or adopting a continuing resolution. Both would reduce the pain feds feel today.
FEDSMILL comments should never be taken as irrefutable legal advice or any other kind of lawyerly guidance. But, it sure seems to us that the Anti-Deficiency Act provisions giving the President the authority to decide who to furlough, who to keep, and now who to pay among those not furloughed by rerouting Congressional funds dedicated to non-salary matters is a mess, wrong, and unconstitutional. At its root, the current situation permits Congress and the President to redirect, and even avoid, the political pressure and accountability the Constitution intended come their way by arranging for federal employees to suffer instead. Forcing feds to go without a paycheck (or even worse to force them to work without pay when they could pick up temp work to pay the bills) creates only minor political pressure on the people we elected to suffer the pressure and make the hard decisions. It is the avoidance of political accountability rather than accountability to the people.
